1985 Supreme(Cal) 383

High Court Of Calcutta
R. N. PYNE, PRABIR KUMAR MAJUMDAR
EAST ANGLIA PLASTICS (INDIA) LTD - Appellant
Versus
STATE - Respondent
Appeal Nil  Of  1985
Decided On : 09/27/1985

1. The factors to be considered by the court in determining whether sufficient cause has been shown for condonation of delay in filing an appeal are: (i) the length of the delay; (ii) the reasons for the delay; (iii) the conduct of the parties; and (iv) the merits of the case. 2. A suit is a suit for land if the primary and substantial object of the suit is to get an adjudication and/or determination of right or interest in an immovable property.

Headnote:

LIMITATION ACT, 1963 - SECTION 5 - CONDONATION OF DELAY - SUIT FOR LAND - JURISDICTION - LETTERS PATENT, CLAUSE 12 - WEST BENGAL TOWN AND COUNTRY (PLANNING AND DEVELOPMENT) ACT, 1979 - SECTIONS 11, 14 - DEVELOPMENT AUTHORITY - JURISDICTION.

Fact of the Case:

The petitioner filed an application for condonation of delay in filing an appeal against the order of the learned single Judge, which took the plaint off the file and directed the same to be returned to the petitioner's Advocate-on-record for presentation to the proper court, on the ground that the suit was a suit for land and, therefore, this Court had no jurisdiction to entertain the same. The petitioner was granted a lease in respect of 5.91 acres of land in Durgapur for a term of 60 years upon payment of a salami of Rs. 36,300/- and the rent of Rs. 60/- per year and upon the term and condition that the petitioner within five years from the date of lease would erect a factory thereon, failing which the lease would be determined. The petitioner failed to construct a plastic factory on the demised premises by the stipulated date, but, as alleged by the petitioner, due to no fault of its own. The respondent No. 2, Asansol Durgapur Development Authority, was created by the West Bengal Town and Country (Planning and Development) Act, 1979 and was constituted as the Development Authority for a certain area including Durgapur where the demised premises was situated. The respondent No. 1 sent a notice to the petitioner to the effect that as the respondent No. 1 had decided to resume possession of the demised premises upon the petitioner's failure to build a plastic factory as per terms and conditions of the said lease and to take possession of the demised premises on 14th July 1983. Thereafter, the petitioner filed a suit in this Hon'ble Court claiming, inter alia, for a declaration that the said notice dt. 7th June 1983 was illegal and null and void and for an injunction restraining the respondent No. 1 from giving effect to the said notice and from disturbing the possession of the petitioner or dispossessing it from the demised premises. The respondent No. 2 was added as a party defendant in the above suit. The respondent No. 2 made an application, inter alia, that the plaint filed in Suit No. 434 of 1983 be taken off the file and be rejected; the suit should be dismissed and perpetual injunction restraining the plaintiff, its servants, agents and assigns from taking any step or further steps in the suit in any manner whatsoever on the ground that this Hon'ble Court had no jurisdiction to entertain the said suit inasmuch as the demised premises was situated in Durgapur outside the Original Side jurisdiction of this Hon'ble Court. The learned single Judge made an order for taking the petitioner's plaint off the file and directed the same to be returned to the petitioner's Advocate-on-record for presentation to the proper court.

Finding of the Court:

The Court held that the petitioner had not been able to explain the delay in filing the appeal and that no sufficient cause had been shown for not preferring the appeal within the prescribed period of limitation. Therefore, the Court held that the petitioner's appeal against the order of the learned single Judge was barred by the law of limitation. The Court further held that the suit was a suit for land and, therefore, this Court had no jurisdiction to entertain, try and determine the same.

Issues: 1. Whether the petitioner had shown sufficient cause for condonation of delay in filing the appeal against the order of the learned single Judge? 2. Whether the suit was a suit for land and, therefore, this Court had no jurisdiction to entertain, try and determine the same?

Ratio Decidendi: 1. In order to determine whether sufficient cause has been shown for condonation of delay, the court has to consider the following factors: (i) the length of the delay; (ii) the reasons for the delay; (iii) the conduct of the parties; (iv) the merits of the case. In the present case, the delay was of 32 days. The petitioner had not been able to explain the delay satisfactorily. The petitioner had not filed any affidavit from its Advocate-on-record or any responsible person employed in his office explaining the delay. The petitioner had also not filed any Doctor's affidavit or certificate in support of the statement that its Advocate-on-record was seriously ill and did not attend court or his office between 26th March and 30th June 1985. The respondent No. 2 had filed an affidavit stating that the petitioner's Advocate-on-record had knowledge of the impugned order on 10th July 1985. The petitioner had not denied this statement. The petitioner had also not explained the delay between 16th July 1985 and 17th August 1985. The Court held that the petitioner had not shown sufficient cause for condonation of delay. 2. In order to determine whether a suit is a suit for land, the court has to consider the following factors: (i) the nature of the relief claimed; (ii) the subject matter of the suit; (iii) the purpose of the suit. In the present case, the petitioner had claimed, inter alia, for a declaration that the impugned notice was illegal and null and void, a declaration that the lease was subsisting and that the petitioner was a lessee thereof, cancellation of the impugned notice and injunction restraining the respondent No. 1 from evicting and/or dispossessing the petitioner from the demised land and/or from disturbing and/or interfering with the petitioner's use, enjoyment and/or possession of the demised land. The subject matter of the suit was the demised premises, which was situated outside the Original Side jurisdiction of this Court. The purpose of the suit was to get an adjudication and/or determination of the petitioner's right or interest in the demised premises. The Court held that the suit was a suit for land and, therefore, this Court had no jurisdiction to entertain, try and determine the same.

Final Decision: The Court dismissed the petitioner's application for condonation of delay and also held that the suit was a suit for land and, therefore, this Court had no jurisdiction to entertain, try and determine the same.